Judge Weinfeld, A Recollection

We were fiercely proud of him, Bruce and I. We had to be, by then. He'd been
sitting there, late and early, reading the print off the pages since before we
were born. How much he taught us, in those first few terrifying weeks, we
never really knew. Understanding became second nature so quickly that we soon
forgot we'd ever never known.

Days became months, and we began to find our way. We learned to keep a
couple of complex motions ready for disposition so that, no matter how busy
one of us was on trial, we could always meet the Judge's anxiety that work was
"piling up" by putting on a sudden burst of speed. I brought a computer into
Chambers for the first time, a couple of years before the AO realized that
judges needed more than a secretary's word processor, and we shared it between
the two of us, trying to increase productivity without raising (God help us)
the Judge's expectations.

So he grew accustomed to us, and when--after only fourteen hours in the
office during the heat of August--he stopped in to say "Good night, boys," we
could hear the new note of confidence. For a few precious hours, until 4:30
a.m. or so, he could trust us to keep the boat afloat.

It must have been about two months in that we held our first quarterly
calendar call. It came as a pleasant surprise to discover that the pillars of
the New York Bar were now more afraid of Weinfeld than Bruce and I were, and
we learned the great lesson that litigation settles when a judge no one
expects to reverse on appeal says "ready for trial on 24 hours' notice."

The Judge never thought of himself as a case manager, I believe. He drove
himself and all the clerks so hard all those years because he thought the work
in imminent danger of spiraling out of control. But the same work rules that
gave him confidence in his own decisions--to hear argument on all motions, to
read every scrap of litigation paper before the law clerk's memo, to spend no
time in settlement conferences, to be ready to try everything--also controlled
the docket. Hearing your own discovery motions brought even the most
ill-disciplined users of this farcical "self-executing" system into line. The
calendar calls and the Judge's open door policy ("my courtroom door is open:
try your case") helped parties to find their own way to settlement without
investment of the Judge's time. And no one read more carefully than the
Judge, as every Tuesday morning showed.

All Monday night, racing to be done before he arrived at 4:30 a.m. Tuesday,
we had been preparing the motions. Each one, large summary judgment showdown
or the smallest discovery dispute, carefully prepared with the papers in order
and our memos on the bottom. By the time we arrived between 7:30 and 8,
bleary from a few hours of snatched sleep, the reading process was far
advanced. The buzzer would go off relentlessly (one for Bruce, two for me) and
the search for agreement would be on. Why did I think summary judgment could
be granted here? Hadn't this discovery become abusive? Hadn't I overlooked an
uncited case that would have bolstered defendant's motion to dismiss? I've
been asking questions in law school classrooms for almost a decade now, and
whatever my students may think, they've never been through anything like
Weinfeld's Tuesday morning tutorial in advanced civil procedure. Like so many
before us, Bruce and I sweated, and we thrived.

Christmas Day I was in the office; he called to invite me for dinner but I
knew he wanted to charge the jury next morning (yes, on December 26th) in a
five-week RICO trial with ten codefendants, and there wasn't much time. By
then Bruce and I had learned that "good night, boys" could be the signal to
try some experiment in making the Judge's life a little smoother. There was,
for example, the great mystery of the missing first scrapbook. All his life
Weinfeld kept commonplace books recording the events that shaped his time.
The very first, full of Woodrow Wilson and the League of Nations, along with
the Judge's own time as a student at NYU, was lost. For years, Marie told us,
he had fretted about it. For weeks, after "good night, boys," we took the
chambers apart. At last we found it, caught behind the wall paneling in a
file closet. Some intricate custom fishing gear contrived from coat-hangers
and we brought it out by the binding. I don't remember that he said anything
much about it to us, but we knew how he felt.

Precision was all. My desk, never a precise place, he tolerated with only
an occasional outburst. But Bruce and I were learning even the sorts of
precision that Bruce (ever a neatnik) didn't have. A new judge, short of
experience in criminal cases, came on the bench during the winter, and one
long Monday night we looked up from our work to find both of his clerks
standing in our office. "Please," they said, "our judge needs to take a
guilty plea tomorrow--how's it done?" "Oh," we said, "just have a seat," and
then and there, without looking up, Bruce and I ran through a plea allocution,
in unison, word for word. About some things, there's only one right way.
Preparation, he said, is about finding the one right way. "If we're wrong on
the law, the Court of Appeals can always straighten us out. Be we have no
right to be wrong about the facts."

The Judge liked one of us to be present when a case of his was reviewed
"upstairs," and so most of the Second Circuit arguments I've ever attended
were pretty lopsided. Later on (thanks mostly to the Judge) I watched plenty
of lawyers argue in the United States Supreme Court too, but I've never seen
an advocate with a harder job than that of explaining to Judge Friendly how
Judge Weinfeld had abused his discretion. It may not have been as easy for
them to admit it as it was for Bruce and me, but I have a sneaking suspicion
that the Court of Appeals was fiercely proud of Judge Weinfeld too. They
should have been. As Bruce and I were learning, the most underrated component
of justice is the hard work of getting to it. No one demanded that more, or
drew it more consistently out of himself, than Judge Weinfeld did.

Spring blossomed, New York humidity began to be tangible at street corners,
and I knew the Judge was beginning to dream of blueberries. All winter we had
been subsisting Saturday mornings on bagels, but at the outset I had learned
to bake blueberry muffins late on Friday nights, and now I could tell he was
wondering when I would start again. We would discuss in passing, from time to
time, the price of hothouse fruit in East Side delis, and the Judge would
express contempt for anyone with the soulless willingness to charge six
dollars a pint. So we waited for the price to fall, knowing that those first
tastes of the fresh blueberry muffins he loved would mark the beginning of the
end of the partnership with which, for a year, he had blessed us.

He said "good night, boys," now in long early-summer daylight and
sometimes, only half believing our good fortune, Bruce and I also found
ourselves on the street parting for home before sundown. Blueberries were a
drug on the market and I could bring a dozen muffins or so, still warm from
the oven, to Saturday breakfast. Now we could taste in them what he did:
sweetness, intensity, satisfaction for a week of doing justice. And, so sadly
as with all sweet things, the certainty of endings.

And so it proved. I went to Washington for a year, and when I returned it
was another blueberry season, so I came downtown for 6:30 breakfast. He ate
but half a muffin, and I knew we were approaching a yet more final parting. I
see him now sitting in his chair by a desk full of motion papers neatly lined
up, the Hebrew Scriptures in his lap, gesturing animatedly with his great
strong hands in conversation with an early visitor, before sunrise on a winter
morning. His bow tie (I have it still, and wear it sometimes) marks him of a
place and time, but the face and manner are eternal. The sages of our people
read those commandments with the same unswerving commitment; the Year Books
record his courtroom colloquy with counsel; John Marshall would have valued
him no less than Thurgood Marshall did. In his face I see the best that can
be made of the human desire for justice: the modest dignity of
self-sacrificing work, the belief in judging rather than judges, the endless
willingness to take pains to get it right. "There are no small cases," he
said a thousand times, and this is true, but only in the court of a very great
judge. He sought to do justice all the days of his life, and what little I
know of that infinite, human mystery I learned from him. Good night,
Judge.